Saturday, July 11, 2009

Part 2 - Gobbledegook and regurgitation in the written judgments of the Court of Appeal in Zambry v Nizar: Postscript - Zainun Ali JCA’s judgment

by N.H.CHANPostscript

On Tuesday, July 7, 2009 I posted an article under the above title on the web with various news portals and here. At that time I only had the written judgments of two of the judges Raus Sharif and Ahmad Maarop JJCA. I have just received the third judgment of Zainun Ali JCA. Below is my critique of the written judgment of Zainun Ali JCA.

The points that really matter

As I have said it before in the first part of this article, there are only two points that really matter in the appeal of the case in question. They involve the reading of two clauses in Article 16 of the Perak Constitution and an understanding of what the clauses mean. A very experienced judge, the late Lord Justice Salmon in a talk which he gave to young members of the English Bar, Some Thoughts on the Traditions of the English Bar, said:

… remember this, in few cases, however complex, is there usually more than one point that matters. Very seldom are there more than two and never, well hardly ever, more than three. Discover the points that really matter. Stick to them and discard the rest.

Actually, Salmon LJ was revealing to budding advocates the mind of a judge. The young advocates are informed, before they embark on their career, that a judge makes his decision by discovering the point that really matters or, exceptionally, the points that really matter. This revelation should place aspiring advocates on the right direction to becoming good advocates.

If a judge misses the point or points altogether, the whole decision becomes nothing but gobbledegook if it is unintelligible or a regurgitation of a lot of information on the facts and the law without understanding them. A decision which does not decide on any point that really matters is not a judgment at all. A decision which misses the point altogether is merely the extraneous ranting of an incompetent judge. At best, the legal principles described in the decision may be described as nothing more than obiter dictum or dicta; but if it is just to repeat known law (which is unconnected to any point in issue) as was done here in most of the judgment of Zainun Ali JCA, it is not even dicta. In truth, such a decision is useless because it cannot be cited as an authority as it is only regurgitating what is already known. But a decision that misses the point or points altogether is no authority on the issue or issues before the court. Because the decision did not decide on the issues or points that matter, such a decision is at best merely obiter dicta (the Latin phrase means “incidental”).

Professor Andrew Harding in his essay, Crises of Confidence and Perak’s Constitutional Impasse, gave an illustration of such a situation in Amir Kahar (Sabah, 1995) which the High Court judge in the present case had distinguished. This is what Professor Harding wrote:

Amir Kahar, [the High Court judge] said, was correct on its facts but did not raise the issue in question as the Chief Minister of Sabah in that case had in fact resigned and the only issue was as to the effect of his resignation with regard to the rest of the Cabinet; accordingly the court’s views in that case on the issue of confidence were merely obiter dicta (incidental).

If a judgment decides on the points that really matter, the judgment which decides on those points is described as the ratio decidendi of the decision (this Latin phrase means “the reason for a decision”).

The incidental part of a judgment which does not form the reason for the decision (the ratio of the judgment) is an obiter dictum (plural obiter dicta). This Latin phrase means “incidental”. An obiter dictum is never cited as an authority for the proposition it states, although an intellectually dishonest judge would treat it as such, in the hope that the reader would take his word for it and not read the whole judgment that he has referred to in support of his proposition. Sometimes an obiter dictum has much persuasive value depending on the standing of the judge. Such obiter dictum may sometimes be adopted by a judge as his judgment in an appropriate case. Only the ratio decidendi of a judgment can be used as authority for the proposition that it states. But the remarks which are incidental to the decision are obiter.

Let us now expose the fallacy of the judgment of Zainun Ali JCA

The judgment is 115 pages long - it is like using a blunderbuss to shoot at a target, scattering shots in all directions, and not hitting it. It is the longest of the three. Most of it has nothing to do with the two points that really matter in this appeal which we know are Clause (2)(a) and Clause (6) of Article 16 of the Laws of the Constitution of Perak. And when she does come to the two points that are the real issues in the appeal she misses the points altogether by giving a wrong reason for them.

Here at p. 12 is an example of irrelevant writing. This is what she wrote, p. 12:

Inclined as is the Federal Constitution towards the Westminster structure, it has its own peculiarities. The Westminster model is not to be found in one document, but could be seen in bits and pieces in the Magna Carta, the Bill of Rights, the Act of Settlement and a series of Parliament Acts. Conversely, the Federal Constitution however is embodied in one document and gathers unto itself various sources of law some of which are implicit. The unique presence of the written law, shot through with informal and unwritten sources in the form of conventions, prerogatives, discretionary and residual powers as such, help ensure the continuation of constitutionalism and the rule of law. Thus the sources of law in our Constitution are several. Article 160(1) of the Federal Constitution says it all. “Law includes written law, the common law, insofar as it is in operation in the Federation or any part thereof and any custom or usage having the force of law in the Federation or any part thereof”.

I think I should stop here. Enough is enough. I don’t think we, neither the reading public nor myself, can stomach any more balderdash. You can pretend to be erudite by regurgitating unconnected material of facts and jumble them up. You can even misread the history of England like not knowing the different period in history between the feudalism of the barons and a despotic king in Magna Carta and the Act of Settlement which came about after King James II fled the realm and the ascension of William and Mary to the throne of England. Unless you can connect the leap from thirteenth century England to the Act of Settlement in 1701 some four hundred years later, then everything that is said is nothing more than pretended erudition.

What is the Magna Carta?

I shall start with Magna Carta since she mentions it first. In order to understand the significance of Magna Carta in English history, it is necessary to know the difference between feudalism and despotism. The Charter marked the first step in the resistance by the barons to the despotism of King John in the thirteenth century. As Trevelyan wrote in his History of England, illustrated edition, p. 199:

For feudalism is the opposite of despotism… The barons and knights were protected from the king by feudal law and custom. When [the King] claimed service, aids or reliefs on a scale larger than the custom allowed, they resisted him on point of feudal law.

Trevelyan tells us:

The resistance to royal despotism in the thirteenth century was successful because the feudal class, unlike the squires of later times, was still to some extent a warrior class… they all had chain-armour and war-horses, some had gone on the Crusades, and many lived in a state of chronic skirmishing with their Welsh and Scottish neighbours. That is why the barons of Magna Carta… were able to put up a fight against the King.

I shall now let Lord Denning take up the story in The Family Story, Butterworth, 1981, p. 229:

On May 5, 1215, many of the Barons openly rebelled against the King. They renounced their fealty [loyalty in feudal times] to him. … On May 12 he [King John] ordered their estates to be seized. But the Barons marched towards London which, on May 17, opened its gates to them. This was decisive. The Barons, with the support of London, had the whip-hand. John had to sue for peace. … At length a truce was arranged from June 10 to June 15.

The first meeting at Runnymeade was on June 10, 1215. There were present King John, the Archbishop Stephen Langton, and some baronial envoys. At this meeting the Barons presented their demands and the King submitted to them.

At p. 230:

On June 15 the truce was due to expire. On that day the parties assembled in great numbers at Runnymede and agreement was reached on all points. The King and those present all solenmly swore to abide by the agreement. This day was regarded as so important that, when the Charter was afterwards drawn up, it was given the date, June 15.

At the bottom of p. 230 and at p. 231:

The peace did not last long. In a couple of months the parties were again at war. The King looked for aid to Rome. … August 24, 1215, Pope Innocent III purported to annul the Charter. … he excommunicated the English Barons. … But John’s death on October 12, 1216, at Newark Castle, altered everything. Early in the reign of the young King Henry III the Great Charter was confirmed by his regents. In the years 1225 it was re-issued by the King himself under the Great Seal. Magna Carter then took its final form, word for word, as it stands today as the earliest enactment on the Statute Rolls of England.

The Great Charter dealt with grievances of the time in a practical way. It gave legal redress for the wrongs of a feudal age. But it was expressed in language which has had its impact on future generations. It put into words the spirit of individual liberty which has influenced our people ever since.

…

We find set down in the thirty-ninth clause the guarantee of freedom under the law [all the clauses of the Magna Carta were in Latin; the translation is by Lord Denning]: (No free man shall be taken, imprisoned, disseized [deprived of feudal interest in land], outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land).

Immediately following, in the fortieth clause, is the guarantee of the impartial administration of justice [in Latin; Lord Denning gives the translation] (To no one will we sell, to no one will we deny or delay right or justice).

At pp. 231, 232:

The constitutional significance of Magna Carta is immense. It was thus measured by Bryce: “The Charter of 1215 was the starting point of the constitutional history of the English race, the first link in a long chain of constitutional instruments which have moulded men’s minds and held together free governments not only in England, but whenever the English race has gone and the English tongue is spoken”. When the colonists crossed the seas from England to countries the world over, they took with them the principles set down in the Charter. Those who went to Virginia took its very words. When they renounced their allegiance in 1776, they stated in their Declaration of Rights that “no man be deprived of his liberty, except by the law of the land or the judgment of his peers”. Thence the provisions of the Charter found their place in the Constitution of the United States. There it is revered as much as here.The Bill of Rights 1688 and the Act of Settlement 1701

For this Lord Denning has put it succinctly in The Family Story, pp. 192, 193:

No member of the government, no member of Parliament, and no official of any government department, has any right whatever to direct or to influence or to interfere with the decisions of any of the judges. It is the sure knowledge of this that gives the people their confidence in the judges. … The critical test which they must pass if they are to receive the confidence of the people is that they must be independent of the executive.

Why do the English people feel so strongly about this? It is because it is born in them. We know in our bones that it will not do for us to allow the executive to have any control over the judges: and we know it because our forefathers learnt it in their struggles with the kings of England - the kings who in the old days exercised the supreme executive power in the land. Ever since the Act of Settlement in 1701 it has been part of our constitution that a judge of the High Court cannot be removed except for misconduct. … Secure from any fear of removal, the judges of England do their duty fearlessly, holding the scales even, not only between man and man, but also between man and the State. Every judge on his appointment takes an oath that he “will do justice to all manner of people according to the laws and customs of England, without fear or favour, affection or ill will”. Never since 1701 has any judge failed to keep that oath.

…

The Houses of Parliament enjoy certain privileges. One of them is freedom of speech. Erskine May says: “What is said or done within the walls of Parliament cannot be enquired into in a court of law”. The Bill of Rights 1688, art. 9, s. 1, says:

“That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament.”

Now you know why I think she does not understand what she is saying. If she does understand what she wrote then she would not have decided the instant appeal in the way she did at the conclusion of her overlong judgment.

But what has all this got to do with the two clauses in Article 16?

But the most important point of all, after 114 pages of mumbo-jumbo that she wrote, is this: what has all this got to do with the two clauses of Article 16 of the Laws of the Constitution of Perak?

The United Kingdom does not have a written Constitution and in order to understand it fully one should be well acquainted with the history of England. Whereas Malaya and later Malaysia has a written Constitution which may be changed by a two-thirds majority in Parliament. But, here in this appeal the lady judge is, and should be dealing with, the two points that really matter which are the two clauses of Article 16 of the Perak Constitution.

After having said that, I shall go straight to the points at issue. How did she answer them? It took her 114 pages of circuitous writing before she finally came to the wrong conclusion that “His Royal Highness had … rightly exercised his constitutional powers as provided for and under the Perak State Constitution solely for the best interests of his subjects”.

I am stunned by her naivety. I am at a loss for words.

We all know that there is no provision in the Constitution of Perak which provides constitutional powers to the Sultan to act “solely for the best interests of his subjects”. For this judge to say that there is such a power when there is no provision in the Constitution of Perak for the Ruler to have such power is to mislead the uninformed public. A judge who misleads cannot be trusted. She has disgraced herself on the seat of justice.

Professor Andrew Harding took up 4 pages and Professor Kevin Tan 5 pages to come to the correct conclusion. Sometimes I wonder where these recalcitrant judges read law. I have a theory. One way is to memorise all the lecture notes - when I was a student in London I heard that many of our students memorized the notes supplied by Gibson and Weldon and passed their examinations. They forget that LAW is a reading subject. Ever heard of the expression, we joined a university or the Inns of Court to read law? You study mathematics or science but you read law.

After meandering for 114 pages she concluded, p. 114:

Thus I share the view expressed by my learned brothers Raus Sharif JCA and Ahmad Maarop JCA that in the context of this appeal, His Royal Highness had in the critical situation rightly exercised his constitutional powers as provided for under the Perak State Constitution solely for the best interests of his subjects. This decision being unanimous, the orders are as comprehensively set out in the judgment of my learned brother Raus Sharif JCA.

What I have said in my severe critique of Raus Sharif and Ahmad Maarop JJCA in the first part of this article applies, mutatis mutandis (allowing for the appropriate changes), to Zainun Ali JCA. Need I say more.

I am as much disgusted as most of you are of judges of such inane quality. In the present context, “learned” is a funny word. I know some of you may say that the word is only a title applied in referring to a member of the legal profession. It has no meaning. I hope so, otherwise it will mislead the public further.